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Turley v. McKenzie

United States District Court, D. Massachusetts

January 5, 2018

TIMOTHY TURLEY Plaintiff,
v.
CURTIS MCKENZIE, et al., Defendants.

          ORDER ON DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT

          LEO T. SOROKIN UNITED STATES DISTRICT JUDGE.

         On December 31, 2014, plaintiff Timothy Turley filed a complaint in this Court against the Municipal Police Training Commission (“the Commission”), the Western Massachusetts Regional Police Academy (“the Academy”), Curtis McKenzie, Robert Powers, and Delilah Yee (collectively, “the Commonwealth defendants”), and Sean Shattuck. The complaint alleged, among other claims, sexual harassment, gender discrimination, age discrimination, breach of contract, and retaliation, all arising from Turley's tenure at and dismissal from the Academy.

         After the Court's ruling on the Commonwealth defendants' motion to dismiss and defendant Shattuck's motion for partial judgment on the pleadings, six claims remain before this Court. Doc. No. 29. Count I asserts a First Amendment retaliation claim under 42 U.S.C. § 1983 against McKenzie, Powers, Shattuck, and Yee in their individual capacities.[1] Doc. No. 1. Count II asserts a claim for non-monetary[2] relief under 20 U.S.C. § 1681 (“Title IX”) against the Academy and the Commission. Id. Count III asserts a claim for equitable relief under Mass. Gen. Laws chapter 214, § 1C (“Chapter 214 sexual harassment”) against the Academy. Count IV asserts a claim for equitable relief under Mass. Gen. Laws chapter 151B (“Chapter 151B”) against the Commission, and against McKenzie in his official capacity, as well as a claim for monetary damages against, McKenzie, Powers, and Yee in their individual capacities. Id. Count VI asserts a claim for specific performance for breach of contract against the Commission. Id. Finally, Count VII asserts a claim for tortious interference with contract, for monetary damages, against McKenzie, Powers, Shattuck, and Yee in their individual capacities. Id.

         Before the Court are the defendants' motions for summary judgment. The Commonwealth defendants move for summary judgment on all claims pending against them. Doc. No. 118. Separately, Shattuck moves for summary judgment on all claims pending against him. Doc. No. 120. Turley filed a combined omnibus opposition to the defendants' motions in which he addressed only the First Amendment claim (Count I), the Title IX claim (Count II), and the Chapter 214 sexual harassment claim (Count III).[3] Doc. Nos. 129; 134. Accordingly, the Court ALLOWS the defendants' motions for summary judgment as to Counts IV, VI, and VII (a) as unopposed and (b) due to Turley's failure to prosecute these claims at this stage of the litigation. That leaves for resolution the motions for summary judgment on the First Amendment retaliation claim against, in their individual capacities, McKenzie, Powers, Shattuck, and Yee (Count I), the Title IX claim for non-monetary relief against the Academy and the Commission (Count II), and the Chapter 214 sexual harassment claim against the Academy (Count III).[4]

         I. BACKGROUND

         The facts, based upon the undisputed facts before the Court, Plaintiffs' factual submissions even where disputed and those facts established by drawing all reasonable inferences in Turley's favor, are set forth below.[5]

         Turley worked for twenty years at the Suffolk County Sheriff's Department. Doc. No. 136 at ¶ 2. He retired from the Sheriff's Department in 2010 at the age of forty-three. Id. at ¶ 3. In 2013, Turley decided to advance his career by training as a certified police officer. Doc. No. 1 at ¶ 12. To further this goal, Turley enrolled in a 20-week police officer training course at the Academy, which began in August of 2013.[6] Doc. No. 136 at ¶ 198.

         A. Alleged Hazing at the Academy

         Turley avers that on his first day at the Academy he was forced “to place socks on [the] bare feet [of another cadet] in front of the entire [class].” Doc. No. 136 at ¶ 148. He was later required to write the Academy's use of force model on the board “every day during his lunch break.” Id. at ¶ 151. Turley was teased by staff instructors Powers and Yee who often made jokes suggesting that Turley suffered from “erectile dysfunction” and “needed Viagra.” Id. at ¶¶ 157, 162-63.

         Turley was not the only cadet who was the object of the staffs' ridicule and jokes. Doc. No. 1 at ¶ 22. Cadets at the Academy are hazed to “toughen them up, ” Id. at ¶ 22, but much of the hazing is “racist, sexist, and homophobic.” Doc. 136 at ¶ 146. For instance, one cadet was called “a walking heart attack” and “fucking retarded, ” he was instructed to stop “sticking [his] ass out” because he was “not at [his] boyfriend's house, ” and was “ordered . . . to exchange shoelaces with a female cadet whose laces were pink.” Id. at ¶¶ 78, 80, 84-85. A cadet was asked “Does your wife read the news paper [sic] while you fuck her?” Id. at ¶ 100. Another cadet was instructed to bring Vaseline to class. Id. at ¶ 107. One teacher instructed the class to stop “ethnically altered vehicles.” Id. at 124.

         The hazing escalated during the cadets' firearms training. Shattuck, one of the firearms instructors, routinely “scream[ed] and [swore] at [student officers] in order to teach them to use their weapons while also feeling stress.” Doc. 138 at ¶ 8. “Throughout the firearms course, Shattuck would refer to the cadets as ‘ladies, ' ‘bitches, ' ‘faggots, ' ‘fags, ' and ‘retards'” Doc. 138 at ¶ 141. On one occasion, Shattuck handcuffed a cadet (not Turley), while Shattuck “took his fingers and placed them under [the cadet's] nose, asking [the cadet] if they [Shattuck's fingers] smelled like the cadet's wife.” Doc. 136 at ¶ 99. The hazing “culminated” when “Shattuck grabbed [a cadet's (but not Turley's)] buttocks behind the genitals at the anus, forced his finger into the victim's anus . . . and proceeded to rub his genital against the victim, simulating sexual intercourse.” Doc. 1 at 30; Doc. No. 136 at ¶ 110. After these incidents, Shattuck told the cadets “what happens on the range, stays on the range” and “you guys can all . . . bitch and moan about how we have talked to you and treated you, but we already have our badges.” Doc. 136 at ¶ 115.

         B. Turley's Objections and Shattuck's “threat”

         Turley did not formally report the instructors' conduct during his tenure at the Academy. Doc. No. 136 at ¶ 36. Turley says, as a general matter, that he objected to Shattuck's behavior on the firing range by making facial expressions and through his body language. Doc. No. 138 at ¶ 217. Except as described later in this paragraph he does not give further details about when he made these expressions, who was present when he made these expressions, or the particular context in which he made them. Turley describes two specific instances by which he says he voiced his objections. First, when Shattuck asked a cadet if “his fingers smelled like [the cadet's] wife, ” Turley made an upset face. Id. at ¶ 219. Shattuck noticed Turley's displeasure and asked Turley “What's your fucking problem?” Id. Second, when Shattuck grabbed a cadet and “simulated intercourse, ” Turley approached to stop Shattuck. Id. at ¶¶ 220-22. Shattuck released the cadet and asked Turley, “Don't you have a sense of humor?” Id. at ¶ 223. Turley responded “That's not funny.” Id. These incidents happened in Shattuck's classroom, and on the firing range, respectively. Id. at ¶¶ 38, 45, 47-52. Turley does not identify the other staff, if any, present during either incident.

         In addition to these instances, Turley says he also “admonished other cadets for nervously laughing at Shattuck's inappropriate behavior.” Id. at ¶ 227. A cadet told him “to keep it down because the staff was listening.” Id. at ¶ 227. Turley does not describe where this occurred, or which instructors, if any, were listening. Id. at ¶ 227.

         Shattuck later told Turley that if Turley ever graduated, then Turley could “tell [Shattuck] to go fuck himself.” Id. at ¶ 223. Turley understood Shattuck's statement as a threat. Doc. No. 136 at ¶ 181.

         C. Shattuck's Alleged Retaliation

         On the final day of weapons training at the firing range, cadets take a firearms qualification test, during which they fire their weapons at paper targets. Doc. No. 138 at ¶ 58. Instructors then score the cadets' tests by reviewing the cadets' targets. Id. at ¶ 60. A cadet is allowed three attempts to pass. Id. at ¶ 64.

         Turley received a failing score on each of his three attempts to qualify on the firearms test. Doc No. 138 at ¶ 199. Turley saw Shattuck score his targets.[7] Doc. No. 138 at ¶ 244. He did not see any other instructors look at his target but admits that another instructor may have also looked at his targets. Doc. Nos. 138 at ¶ 82; 122, Attachment A at 53.

         Turley, who has twenty years' experience qualifying on firearms tests, believes that he shot well enough to pass. Doc. No. 134 at 9; Doc. No. 136 at ¶ 205. Doc. No. 138 at ¶ 199. He contends that he actually did pass but that Shattuck “maliciously fail[ed] him.” Doc. No. 138 at ¶ 250.

         Turley subsequently passed a remedial firearms test, and then passed the same test again after he was separated from the Academy. Doc. No. 138 at ¶ 253-54.

         D. McKenzie's Knowledge

         McKenzie, the director of the Academy, was frequently on the firing range during the hazing. Doc. 136 at ¶¶ 35, 192.

         On one occasion, during a firearms training session, an instructor, Cady, told Shattuck that he “would ejaculate in [Shattuck's] mouth.” Id. at ¶ 38. The instructors were standing near a live microphone, so the comment was broadcast throughout the firing range. Id.

         McKenzie was apprised of the incident (“the hot microphone incident”) in November of 2013, and initiated an investigation at the end of that month. Id. at ¶¶ 39-40. As part of the investigation, McKenzie addressed the cadets, explained that he was investigating, and asked if “they had any questions.” Id. at ¶¶ 40-41. “[N]one responded.” Id. at ¶ 41. McKenzie then interviewed the instructors and spoke with Cady about the incident. Id. at ¶¶ 42-47. Over the course of the interviews, one instructor told McKenzie that he had heard Shattuck make sexually aggressive comments to a cadet. Id. at ¶ 45.

         McKenzie says that, on December 2, 2013, he and Powers arranged a meeting with Shattuck and Cady to discuss the hot microphone incident and the allegations of sexually aggressive comments. Id. at ¶¶ 48. The meeting was held on December 17, 2013, which McKenzie asserts was the earliest date at which the parties were available to meet. Id. at ¶ 49. December 17, 2013 is also the day that McKenzie received a post-dismissal complaint letter from Turley. Id. at ¶¶ 48-49. Turley argues that the meeting was not pre-arranged but was instead held to “manage the crisis created” by his letter. Id. at ¶ 49. He offers no evidence supporting this argument.

         E. Turley's Dismissal

         McKenzie dismissed Turley from the Academy on December 10 of 2013, citing Municipal Police Training Committee regulation 550 CMR 3.09(4) as the reason for the dismissal. Doc. No. 136 at ¶ 17. The Municipal Police Training Committee regulations govern police training programs in Massachusetts, including cadet dismissal. Doc. Nos. 136 at ¶¶ 5, 23. Regulation 550 CMR 3.09(4) (“the three strikes rule”), requires that a cadet be dismissed if he fails “any three tests.” Doc. No. 136 at ¶ 6. When a cadet fails a test, the cadet receives an “action notice.” Doc. 136 at ¶ 215. Per the three strikes rule, a cadet will be dismissed from the Academy upon his third action notice.

         Turley received failing scores on three examinations during his tenure at the Academy: the firearms test, supra 5-6, a comprehensive exam, and the Standardized Field Sobriety Test, (“SFST”), Doc. Nos. 138 at ¶ 104; 136 at ¶¶ 18-19, 226-31.

         F. McKenzie's Alleged Retaliation

         Although the three strikes rule requires that “any student officer who fails . . . any three tests . . . be dismissed for non-disciplinary reasons, ” Police Training Regulations, 550 CMR 3.09(4) (emphasis added), McKenzie instructed the cadets that only comprehensive exams would count towards the “three strike rule.” Doc. No. 136 at ¶ 219. He described the comprehensive exams as four tests “which the students would be given advance notice and ample time to prepare for.” Id. at ¶¶ 216-17. After the first comprehensive exam, McKenzie told the class that it “would be impossible to fail out of the academy for academic reasons if they passed a second comprehensive exam on their first attempt.” Id. at ¶ 222.

         The SFST is not a comprehensive exam. Id. at ¶ 217-220. The test covers only one subject and the material is taught over the course of only three days. Id. at ¶ 265. Turley failed the SFST. Id. 231. McKenzie treated Turley's failure of the SFST as his third and final failure under the three strikes rule. Id. at 232. Turley argues that this treatment was “retaliatory.” Id. at ¶ 196.

         G. Turley's Post-Dismissal Letter

         After his dismissal, Turley submitted a letter alleging that he experienced inappropriate hazing at the Academy and that his dismissal was retaliatory. Doc. No. 136 at ¶ 26-28.

         The same day that McKenzie received Turley's letter, he met with Shattuck, Cady, and Powers purportedly to discuss his investigation of the hot microphone incident and the allegations that arose during the subsequent investigation.[8]Id. at ¶¶ 48-49. Following the meeting, McKenzie collected reports from thirteen cadets and ultimately fired Shattuck and Cady. Id. at ΒΆΒΆ 55-56. McKenzie ...


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